Why Isn’t Voter Suppression a Protest Cause?

April 5, 2012

This week brought another major report on all the efforts in state capitals, almost all Republican-led, to restrict voting rights via new limits on voter registration, early voting, proof of residency and voter identification, all in the name of countering the phantom menace of voter fraud. In a conference call to announce the report, which was produced by the Center for American Progress, Rep. James Clyburn, the South Carolina Democrat, noted that the new rules had led several groups to stop registering voters in that most crucial of swing states, Florida, for fear of running afoul of the law: "To see the League of Women Voters walking away from voter registration activities in the state of Florida because to do so makes it almost inevitable that they will be brought before a court of law and charged with crimes -- that is not the America so many of us started, back in our pre-teenaged years, working to make possible."

This prompted me to wonder again, as I did when I first heard about the decision by the registration groups to abandon Florida, why there hasn't been more visible pushback against the new restrictions. Back in the 1950s and '60s, after all, people risked imprisonment and worse to protest on behalf of voting rights and civil rights. Why is the threat of penalties under an obviously unjust law now enough to discourage groups from challenging them outright? In Florida, for instance, the many new restrictions on registering voters include the requirement that any volunteers registering voters get all registration forms to the proper authorities within two days of the voters having been signed up. That's down from an already strict 10-day window, and it's a rule that's awfully easy to break if you lack a car or if the good ole USPS doesn't get your envelope to the right place in time. Why not just keep registering voters, doing one's best to comply with the rules but daring the Florida authorities to haul you before the judge if you happen to fall outside the absurdly narrow lines?

Well, it turns out that a lot of thought went into this question. And several of the big voter registration groups decided that, for now, it was better to challenge the new rules in court rather than in the street, as it were. The thinking was that proceeding under the new rules was a lose-lose proposition. If one was able to proceed without getting accused of violating the rules, it might buttress the argument that the new rules were workable -- even if the rules resulted in far lower registration totals in the past, as presumably would be the case. Meanwhile, if one did get accused of breaking the rules, the penalty might not be enough to provoke media attention and general outrage; but the resulting large fine or blot on one's record might still be enough to cause real hardship for the volunteer in question.

Lee Rowland of New York University's Brennan Center, which is representing the groups challenging the Florida rules in court, noted sympathetically that the NAACP, which is pressing ahead with registering voters in Florida, has seen its registration totals decline, even as it was slapped with a warning for delivering some forms an hour outside the 24-hour window. "You're damned if you, damned if you don’t. If you screw up then your reputation is on the line and these laws are designed to make you screw up. You get a ding on a flawless record," she said. "The NAACP has attempted to comply with the law, and had mixed success, but the new law has clearly chilled their activity...[It] is running afoul of the rules in a way that’s not flashy and drawing media attention – they're just risking legal action and a big fine.”

The League of Women Voters, which proudly notes that it has not been cited for a single case of registration fraud in its 72 years of work, decided it was better off pulling back entirely and hoping the courts block the new rules ; a federal judge in Tallahassee is expected to decide soon whether to issue an injunction putting the new rules on hold while the challenge over their constitutionality is being weighed. "We looked at the specifics of the law and we strongly believed it would be jeopardizing to our volunteers, and that the regulations in and of themselves were simply not workable," said Deirdre Mcnab, president of the Florida League of Women Voters. "The rules are confusing, vague and broad, and perhaps worst of all, they're intimidating. Have you seen the forms you have to sign? It talks about $5,000 in fines and two years in prison and third-degree felonies. Knowing what I do about the law, as avid as I am to get people involved in the process, I've encouraged them to be very cautious or stay away entirely."

Heather Smith, president of Rock the Vote, sounded a similar note in explaining why her organization pulled out of Florida and joined the lawsuit instead. "It wasn't a decision we made lightly," she said. "It was with a great deal of reluctance that we halted our volunteer-led programs on the ground...But at the end of the day we decided that as a prudent organization, as a volunteer organization of high school and college-age volunteers...that we couldn't put those young people at risk."

As sensible as the groups' logic is, it can't help but leave one feeling slightly dissatisfied. Shouldn't the response to voter suppression be to urge young people to get more engaged, not less, even if there is a risk of confrontation, as happened four and five decades ago? When I asked Clyburn about this, he argued that times had changed, and not necessarily for the better. "I cannot remember, even sitting in the Orangeburg County Jail, when I had as much anxiety as I'm experiencing today. Back then, even when we had to sit at the back of the bus, we felt strongly that what's happening to me here, in Orangeburg, South Carolina, if I can just get my plight before the U.S. Supreme Court, the promise of the country will be delivered to me. I can remember our discussion in meetings -- yeah, we're going to jail now and we're going to be convicted, but we know that the conviction is going to be overturned by the United States Supreme Court."

His insinuation was plain: that young people facing the same question today can no longer be so sure. Still, though, one can't help but wonder whether, in the absence of more direct and visible challenges to these new laws, the Clyburns of today are even asking themselves the question to begin with.